Morton v. Mancari – Oral Argument – April 24, 1974

Media for Morton v. Mancari

Audio Transcription for Opinion Announcement – June 17, 1974 in Morton v. Mancari

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William O. Douglas:

We’ll now hear number 73-362, Morton versus Mancari and 73-364, Amerind versus Mancari.

Mr. Sachse.

Harry R. Sachse:

Mr. Acting Chief Justice and may it please the Court.

This case is here on appeal from decision of a three-judge District Court or the District of New Mexico, enjoining the Secretary of the Interior from enforcing the employment preference for Indians in the Bureau of Indian Affairs, required by the Indian Reorganization Act of 1934.

The appellees and other preference acts, the appellees are non-Indian employees of the Bureau of Indian Affairs, acting individually and as a bringing class action, who’ve been — who claimed to have been denied promotion, because of the preference.

They argue that the preference laws are unconstitutional under the Fifth Amendment that they’ve been tacitly, I suppose, repealed by the Equal Employment Opportunities Act of 1972 and that in any event they’re being interpreted too broadly by the Secretary of the Interior.

The Court held that the acts had been repealed by the Equal Employment Opportunity Act of 1972.

The Court said that it could hold that the Acts were also unconstitutional, but it did not so hold and because of its holdings on these points, it didn’t have to reach the issue of the breadth of the application of the Acts.

The intervenor in this case is Amerind, an Association of Indian Employees of the Bureau of Indian Affairs who have the preference that’s under attack here.

This case concerns the exercise by the Federal Government, by the Congress of the United States of its trust responsibility to tribal Indians and its effort to provide them an opportunity for self-determination and self-help.

I think that I can show to you that it’s not a racial discrimination involved in this case at all, but a determination to have the people whose property and lives are affected by the Bureau of Indian Affairs have common role in the Bureau of Indian Affairs.

Since we’re talking about a preference in the Bureau of Indian Affairs, I think it’s important for both issues of the case to give some facts about the Bureau of Indian Affairs, because I think it’s not well understood.

There are only some 300 employees of the Bureau of Indian Affairs in Washington.

There some 2000 others in offices, in Indian areas of the country, in Denver, Albuquerque, Billings, Montana, Phoenix, Muskogee, Oklahoma, and other places.

These are the administrator–

Potter Stewart:

Aren’t there a good many on the Indian Reservation?

Harry R. Sachse:

Yes, about to get to that.

That takes — this is some 2,300 that I have spoken of, then there are 11,500 employees of the Bureau of Indian Affairs, who actually work on the reservations and these are not people in some sort of high administrative jobs.

These are policemen on the reservations, the foresters who attend the Indian forest, irrigation workers, engineers, teachers, a good number of them are teachers, bus drivers, social workers, employment assistance personnel, house builders, there’s a housing program going on, and then there are a lot of employees who are in a kind of work program as a substitute for welfare program, where simply things that need to be done or done through hiring the people who live there to do it.

William H. Rehnquist:

Do you have any statistics on the comparison of the number of Indians with the number of employees in the Bureau of Indian Affairs?

Harry R. Sachse:

Yes, in the record, the total number of Indian employees of the Bureau of Indian Affairs is 57%, I believe it is, which has arise from some 40 somewhat percent, 20 to 30 years ago.

William H. Rehnquist:

Well, what I meant was the total number of employees of the Bureau of Indian Affairs, as compared to the total number of the Indians?

Harry R. Sachse:

Oh, in the nation?

William H. Rehnquist:

Yes.

Harry R. Sachse:

Well, there about 600,000 Indians under direct regulation or supervision, or assistance from Bureau of Indian Affairs and there may be another 400,000 who would say that they’re Indians, but who are not affected by the Bureau of Indian Affairs.

[Voice Overlap] Those are rough figures, about 600,000.

Potter Stewart:

So, a total of a million?

Harry R. Sachse:

I think they’re about a million people who answered the last census and said that they were Indians.

Potter Stewart:

Of whom 600,000 are —

Harry R. Sachse:

But there was no precise definition for that because 600,000 who are members of federally recognized tribes, who either lived on reservations or off reservations, but have property that is being managed by the Bureau of Indian Affairs.

Byron R. White:

And I think about 600,000, as you see it, who are entitled to the preference —

Harry R. Sachse:

That’s correct and it’s not just as I see it.

The Chief Personnel Office of the Bureau of Indian Affairs testified in the trial of this case, he testified that the preference limited to Indians who are members of federally recognized —

Byron R. White:

That’s the way they’re administering it?

Harry R. Sachse:

That’s right, but it’s not contested this time that, that is the way they are administering it.

Byron R. White:

But that [Voice Overlap]

Harry R. Sachse:

And, we can —

Byron R. White:

The statute maybe broader —

Harry R. Sachse:

The statute is capable of a broader interpretation.

We think this is the correct interpretation of —

Byron R. White:

But that whether it is or not that issue isn’t here, I guess.

Harry R. Sachse:

That’s correct, that’s correct.

Harry A. Blackmun:

Although, there was one sentence you didn’t quite finish, it was the last word “tribe.”

Harry R. Sachse:

I am not sure which sentence was, and the last word was probably tribe, what was the sentence?[Laughter]

Harry A. Blackmun:

I want to be sure what your position was and —

Harry R. Sachse:

Our position is that an Indian does not have preference, unless he is member of a federally recognized Indian tribe and also, is of at least one-fourth Indian blood.

Now —

Harry A. Blackmun:

Incidentally while I have you interrupted, the Equal Employment Opportunity Act has some exceptions in it, doesn’t it Mr. Sachse?

Harry R. Sachse:

Yes, it does.

Harry A. Blackmun:

But, it makes not exception for Indians or the Indian preference laws, do you have any explanation for that?

Harry R. Sachse:

I do and I’d like to say this though, that I would like to spend most of my time, if I can on the statement of the case and the constitutional issues here.

And Mr. Sherman is prepared to deal in detailed with the Equal Opportunity Act of 1972, but rather than leave this hanging, the Act describes in some detail the outer limits of Section 717 of the Act, which is what is at issue here, described in some detail the outer limits of the Civil Service Commission’s Authority and it lists this agency, but not that agency to trace that.

For instance, there’s a problem with the general accounting of, there is no question that the Act intends to have it brought out or scope, cover everything in Civil Service, but there is a specific exception to the Civil Service Law, which I’ll explain for this Indian preference, back to Indian preference statute itself says this shall be so without regard to the civil service law and was done quite deliberately that way, it has been handled that way.

Now, I want to go back for a minute and talk about the reason for the Indian preference statute.

When sort of Romantic period of Indian law is the period before 1880, but by the 1880s, the Indian wars were about over, the Indians had been confined to reservations.

They had been put on reservations, generally that didn’t give them enough water or land or resources to provide for their livelihood.

So they came in fact, as well as in legal theory, the wards of the Federal Government.

The Federal Government didn’t feed them in those days, they didn’t eat.

There simply wasn’t enough to go around and there was an increasing period of federal responsibility for the Indian tribes, though the Indians had been promised in every treaty that they would have a certain level of independence and that though we can’t say the day that their sovereign nations, some concept of sovereignty is behind that as Mr. Justice Marshall said in the McClanahan case.

What happened under this period of federal supervision and care was devastating to the Indian tribes.

Harry R. Sachse:

And by 1934, it had become one of the greater national scandals.

In the 1930s, after 50 years of guardianship, both the administration and Congress decided that there had to be some completely new system for handling Indian Affairs.

Commissioner of Indian Affairs, Collier is testifying Congress in 1934, pointed out that during the years, between 1880s and 1934, during the years, when the Federal Government had the most responsibility, wars were over, that the Indians had been, and these are his words drifting towards complete impoverishment.

That they had been disorganized as groups, deliberately disorganized by the Federal Government as groups and pushed to lower social status as individuals.

And that their land holdings had diminished and this is after they’d given up most of the country.

This is — their landholdings had diminished from 138 million acres in 1887 to 48 million acres in 1934 and something had to be done.

The purpose of the Indian Reorganization Act was to reverse that trend towards destruction and not to strong award, by ending the Indian allotment policy, which had led land go first Indian hands and then, out of Indian hands.

Potter Stewart:

The reduction that you just mentioned in land holdings, does that — was that a total reduction in all lands held by any Indians, in any capacity or was that a reduction in tribal holdings?

Harry R. Sachse:

No, I think it was the latter.

This was lands that had passed out of any kind of [Voice Overlap] Indian —

Potter Stewart:

Reform?

Harry R. Sachse:

Reform.

I know it’s not just tribal holding [Voice Overlap].

No, what he was referring to is the amount of land that had been lost after allotment, where the land was allotted and then, everything that wasn’t allotted was considered surplus land, and then it was just openly sold off to non-Indians, who created this.

Anyway, to end this abuse, was to terminate the Allotment Act to encourage Indian Governments on the reservation and there was a third part, and that was to make the Indian role a prominent in the Bureau of Indian Affairs.

There was an attempt at the classic problem of who guards the guardian and the Federal Government had failed as a plain guardian, and it was felt necessary to have the Indians participate strongly in guarding the guardians and self-help, doing their own work.

A more radical proposal was discarded, more radical proposal was to give the tribes an absolute veto or virtually an absolute veto of any Bureau of Indian Affairs person, who would be sent to reservation.

But rather than do that, Congress decided on this proposal of giving the preference to Indians and the Bureau of Indian Affairs.

I have some nice examples of language from the congressional record pointing out the purpose for this, but I don’t think I’ll read them to you.

We have it on our brief.

As one of the pithier and shorter ones is by Senator Norbeck, who simply said, “I think we’ve utterly fallen down in the present system.

The Indian has been excluded. The reservation has built up with white people, who live of the Indians.”

And other statements attribute this directly to the workings of the Civil Service Law and Mr. Collier pointed out there are actually less Indians working for Indian progress in 1934 than in 1930 — excuse me, than in 1900.

Less percentage of Indians because the Civil Service Law had served to weed out qualified Indians, who may not had been able to compete with hundreds of non-Indian applicants and there were many statements that the Indians should not have to compete with non-Indians for the jobs in their own service, and in controlling their own property.

William H. Rehnquist:

Does the Bureau, Mr. Sachse, have much responsibility outside of the administration of tribal affairs? [Voice Overlap]

Harry R. Sachse:

Well, it does in this sense.

It has responsibility for the — it has trust responsibility for all trust property.

Some of the trust property is allotted, trust property.

So, in that sense, you might say it’s outside of tribal affairs, but other than members of tribes with allotted property, it only has jurisdiction.

Its view is that it only has jurisdiction where it’s dealing with tribal Indians.

William H. Rehnquist:

And an allottee, if he meets the other requirements could qualify under the preference?

Harry R. Sachse:

That’s correct, that’s correct.

I want to point out also that this is not — well, before I get to this, the Act itself, of course says specifically that the preferences to be without regard to Civil Service laws to be the confident Indians without regard to Civil Service Laws.

And it’s a preference in the administration of functions or services affecting any Indian tribe and that’s the way it’s been handled by the Bureau of Indian Affairs.

I want to point also that there many Indians, many people who racially could be considered an Indian, who don’t get this preference.

For instance, if someone is a member of a terminated tribe, such as the Clackamas of Oregon, their property is no longer being administered by the Bureau of Indian Affairs, they don’t get the preference.

Somebody is a member of a tribe whose property has never been handled by the Bureau of Indian Affairs, such Passamaquoddy in Maine, they don’t get the preference.

If someone is racially a pure-blooded Indian from Canada, from Mexico, though he lived here three generations, he doesn’t get the preference.

The preference is not a racial preference.

It’s a preference for the people, whose property and lives are affected by the Bureau of Indian Affairs, who serve in that Bureau.

That’s undisputed in the record of this case testimony to that effect.

Now, we think it’s clear that the statute was not repealed by the Equal Employment Act of 1972.

As we demonstrate in our brief, and I point out also this letter from Civil Service Commission that makes this point that’s in the record of the case, Civil Service Commission, which has primary responsibility for enforcing Equal Employment Act of 1972 in Government Service fully agrees with this, that there’s not a word in the Act, they also had a role in drafting, there’s not a word in the Act that sets out to abolish this Indian preference.

Certainly, the broad language about racial preference or national origin doesn’t do it itself.

The legislative history shows not any intention to change the Indian preference and it’s in conceivable to us that Congress in Act setting out to increase minority participation in Government would have abolished the Indian preference without a word, saying that they’re doing it.

I think if they’d intended to do that, they would have done it.

They had the right to rely on the principles of statutory construction that this broad Act would not repeal the more specific Act.

Harry A. Blackmun:

Of course, the other side of that same coin is that if they had intended otherwise they would have relatively exceptions, written into the exceptions.

[Voice Overlap] So, I think it cuts both ways really.

Harry R. Sachse:

Unless, you focus on the purpose for those exceptions, which are not really exceptions at all, but simply a delimitation of the Executive Branch of the Government and at the outer limits of the Civil Service Commission Authority.

But I’d like to stay out of that, so that Mr. Sherman can get into that.

Harry A. Blackmun:

It seems to me, you are cutting right into it, when you made the up closing statement here?

Harry R. Sachse:

I am afraid I did, and I know you are unhappy with me for saying it all.

[Laughter] But I promise not to do too much of that, but I want you to know that this is also the position of the United States.

Now, to the constitutional issue —

Harry A. Blackmun:

In United States you are speaking here with one voice.

Harry R. Sachse:

For a change. [Laughter]

In Board of Commissioners versus Seber upholding an Indian tax immunity against the constitutional attack on equal protection grounds, the Court said this, and I think the key to this case too.

It said in the exercise of the war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them uneducated, helpless, and dependent people, needing protection against the selfishness of others and their own of improvidence.

Of necessity, the United States assumed the duty of furnishing that protection and with it, the authority to do all that was required to perform that obligation and to prepare the Indians to take their places independent, qualified members of the modern body politics.

Harry R. Sachse:

Then, actually in an earlier case, Perrin versus the United States, in upholding the laws as to sale of liquor to Indians on land next to reservation, the Court said that in determining what is reasonably essential to the protection of the Indians, Congress is invested with wide discretion in its actions, unless purely arbitrary must be accepted in given full effect by the courts.

Now, this — I do not know that I would argue for that broader standard, but certainly that kind of standard is the test for this case that this an area that Congress has to deal with.

It’s a difficult area.

Congress has dealt with and in good faith, and to great extent successfully with the 1934 Reorganization Act and the Court should be loath to undo that on constitutional grounds.

Now one of the point and that is the way we analyze this case, this is not really an equal protection case, at all because equal protection refers to people, who are essentially in the same relationship to the Government, but the government then has passed laws to treat them in different ways and then, the Court uses its Equal Protection analysis to decide whether the difference in that treatment is justifiable.

But here, there’s an essential different relationship, between a tribal Indian, whose tribal property is being managed by BIA —

William H. Rehnquist:

It isn’t quite as simple, as if they had a preference for farmers in the Agriculture Department?

You know that presumably would raise very few equal protection arguments and perhaps I don’t — [Voice Overlap]

Harry R. Sachse:

Well, I put this the other way, that I think [Voice Overlap] this is–

William H. Rehnquist:

Do you think you’ve got an easier case?

Harry R. Sachse:

I think I have an easier case from that, because the special treatment in the constitution itself of Indians, the Indian — the Commerce Clause and the long history of special legislation in dealing in Indian affairs and I point out in light of recent decisions of Court in Arnett II that perhaps a non-Indian employee doesn’t have a vested right and there’s a job in the BIA or if he does, it’s under the terms that comes in under.

But, I say that only to you Mr. Justice Rehnquist.[Laughter]

Harris D. Sherman :

Mr. Justice Douglas and may it please the Court.

I would like to concentrate my comments on the question of whether the 1972 Civil Right Act repealed by implication the Indian Preference Statutes, as a lower court so held.

Section 717 (a) of that Act by its express terms bar description based on race in the Federal Government.

Although nowhere in the terms the legislative history of that Act is there any intention expressed by Congress to repeal the Indian preference statutes, the District Court held that the BIA must come under the broad terms of the Act, and thereby repealed by implication of those statutes.

Now, in my argument, I would first like to analyze the legislative background of the 1972 Act, which we believe without question shows that Congress could not have intended such a repeal.

Secondly, I would like to explain why the BIA is not listed as an exception in that Act.

And lastly, I would like to touch on why we believe the District Court failed to apply basic rules of statutory construction, regarding repeal by implication.

Now, if may first turn to the legislative background of the 1972 Act because I think this is extremely important.

The 1972 Act amended the 1964 Act, and by Section 717 (a), merely codified pre-existing, non-discrimination statutes or excuse me executive regulations that existed in the Federal Government.

The language of these pre-existing regulations in Section 717 (a) of the 1972 Act are virtually identical.

Now, we believe this is important, because these non-discrimination measures had stood side-by-side with the Indian Preference Statutes over the years and neither the executive branch nor legislature viewed Indian preference on the one hand and non-discrimination on the other hand has been inconsistent.

And, for this very reason Congress may well thought, it was not necessary to make an exception for the BIA in the 1972 Civil Rights Act.

Now, let me give some examples to this.

A beginning in the Roosevelt administration, there were executive regulations, which barred discrimination in the Federal Government, and there had been successive executive relations up to the present time.

At the same time, because of the 1934 Indian preference statute, both the BIA and the Civil Service Commission have given special preferential rights to Indians, as opposed to non-Indians upon initial entry into the Bureau of Indian Affairs.

Neither the Bureau nor the Civil Service Commission have seen these non-discrimination policies and Indian preference policies as being inconsistent.

Now, another example of this is in 1964, when Congress passed the 1964 Civil Rights Act.

In barring discrimination in private employment, Congress reaffirmed its belief in Indian preference, by exempting from the Act Indian tribes and private employers on or near reservations to allow preferential employment treatment for Indians.

Harris D. Sherman :

Congress did not view Indian preference on the one hand, and non-discrimination on the other hand, as being inconsistent.

Even in 1972, three months, only three months after the 1972 Civil Rights Act was passed, Congress passed new Indian preference statutes, giving preferences to Indian teachers and Indian educators in special Indian education programs.

Congress in no way saw any inconsistency between these new preference Acts in 1972, and the Civil Rights Act that it had just passed.

Now, I want to turn for a moment to the legislative history of the 1972 Act, Mr. Sachse has pointed that nowhere in the terms of the Act or in its legislative history, which is voluminous, the Congress in any way say anything about its desire to repeal a 138 years of special Indian preference programs.

Surely, had Congress intended to do so, it would have said something, especially in view of its recent affirmation in 1964 and in 1972, with these new Indian preference laws.

I think at the very least Congress would amended the 1964 Indian preference statute to do away with the private preferential right that it given to Indians, if it intended to take away the right it given in the Bureau of Indian Affairs.

Now, the logical question to all these is why didn’t Congress include an exemption for the BIA in the 1972 Act.

Well, we can always speculate on that, since there is nothing in the legislative history to indicate one way or the other.

But, I think the most plausible explanation is that Congress simply felt that Indian preference was not inconsistent with the general non-discrimination prohibitions and therefore it wasn’t necessary to create an exemption.

Now, one reason for this and I stress this is for the same reason Mr. Sachse brought out, these Indian preference statutes as we interpret them are basically not racial statutes.

The thrust of the Indian Preference Act was to give self-determination to Indian people, people whose lives are controlled by the Bureau of Indian Affairs.

Now, as Mr. Sachse point out there are many Indians whose lives are not controlled by the Bureau of Indian Affairs.

Those Indians, even if they are full-blooded Indians don’t qualify for Indian preference.

So in that sense, the Indian preference laws are more based on a federal tribal recognition or tribal affiliation, not on the fact that one is or is not an Indian.

And, in that sense, we do not believe that Congress thought that these statutes were based on a racial classification.

Now in addition to that, as I just —

William H. Rehnquist:

Mr. Sterling, I am not sure that I understand what you say as being the same as what Mr. Sachse say about who qualifies for the preference.

If you’re not on a reservation, let’s say you’re allottee, but you do trace your origins back to a federally recognized tribe, do you qualify for the preference?

Harris D. Sherman :

My understanding is the way the Bureau interprets this statute, you do not qualify for any Indian preference unless you are a present member of federally-recognized tribe.

William H. Rehnquist:

Now that doesn’t you have to be in the reservation?

Harris D. Sherman :

It doesn’t mean you have to have to be on the Reservation, that’s correct.

Potter Stewart:

And you have to be also, at least one-quarter Indian-blood?

Harris D. Sherman :

And you must be one one-quarter Indian-blood, that’s correct.

That where the Bureau is interpreting this statute.

Now, I think in addition to what I have just said, I think an additional reason for the BIA not being part of this 1972 Act was that the thrust of the 1972 Act was to strengthen Civil Service Commissions and tie discrimination measures.

And this 1934 Act, as Mr. Sachse has said was instituted giving Indians preferences “without regard to Civil Service Laws.”

We don’t think Congress meant to do away with those preference statutes when it passed the 1972 Act.

Now, I want to say that there is an alternative explanation to why the Bureau doesn’t appear in the Act and that is simply because it is very, very possible that Congress overlooked the Bureau or overlooked Indian preference when it considered the Act.

I think there’s good evidence to that in the sense that there’s not one word, anywhere in the legislative history that mentions the Bureau of Indian Affairs or the Indian preference statutes.

Thurgood Marshall:

(Inaudible) and this person who is a member of recognized tribe and one-quarter Indian-blood in an ordinary job, he has the protection of OEO?

Harris D. Sherman :

Well, I think he would also have the protection of the Office of the Office [Voice Overlap].

Thurgood Marshall:

So, he had both.

Harris D. Sherman :

So he would have both protections, I presume, because he is a member of minority, that’s correct.

Potter Stewart:

Well, he has — and he has more than the protection of OEO, a private employer can discriminate in his favor.

Harris D. Sherman :

Only a private employer who is on or near reservation.

Potter Stewart:

Alright.

Harris D. Sherman :

But that’s in the private sector.

We are dealing here with the Bureau of Indian Affairs and Indian Health Service which is an [Voice Overlap] I also want to deal briefly with the issue of statutory construction as it applies to repeal by implication.

Appellees have contended that the terms of the Indian Preference Statute and the Civil Rights Act of 1972 are in conflict, and thus, the Indian Preference Statutes because their earlier statutes must give way to the latter statute.

Now, quite to the contrary, the rules of this Court generally have been that repeal by implication of a special statute by a general statute will not take place.

Now, I want to stress that in our view, this Indian Preference Statutes without question are special statutes, they only apply to the Bureau of Indian Affairs and Indian Health Service and in only in a very limited way.

On the other hand, the 1972 Civil Rights Act without question is a general statute. It applies to virtually the entire Federal Government.

Now, if the terms of the special and general statutes are in conflict, the prior special statute will normally become an exception to the general statute, unless the legislative history of the general statute could be demonstrated to have expressly intended to repeal the earlier statute which clearly is not the case here because we don’t have one word relating to intentional repeal Indian preference or if the basic goal of the general statute would be entirely defeated, if the earlier legislation were to stand.

Now the 1972 Civil Rights Act stands almost in its entirety intact.

It applies virtually all agencies of the Federal Government.

As a matter of fact, it applies to the Bureau of Indian Affairs.

Racial discrimination, sex discrimination, religious discrimination in the Bureau of Indian Affairs is precluded.

Only when an Indian and a non-Indian compete for a vacancy and the Indian is qualified for that job and he is from a federally recognized tribe does he received the preference.

Otherwise, the 1972 Civil Rights Act in all other respects applies to the Bureau of Indian Affairs.

Now, lastly, I would like to just comment on what concerns the Appellant Amerind greatly in this case.

If Indian preferences be repealed or which to be found unconstitutional, we believe this would have a devastating effect on the Bureau or Indian Affairs and on Indian Employment and I would like to briefly explain this.

Our brief does go into the fact that almost all Indians in the Bureau of Indian Affairs enter the Indian service through what is called the accepted service.

This is a special exemption by which Indians, they have to be qualified, but they do not have to take civil service examinations and they don’t have to place their names on federal employment registers.

Now the reason for this accepted service was that the 1934 Congress realized that civil service examinations had long excluded qualified Indians.

They simply did not measure Indian ability, Indian potential.

So the accepted service was setup and the authority for the accepted service in the BIA was none other than this 1934 Indian Preference Act.

So, what concerns us is if you take away Indian preference, then you in turn take away the accepted service and that has been the major vehicle by which, literally thousands of Indians have been able to come in to their own service and work for their own people.

And as Exhibit A of our reply brief shows that the study by the Civil Service Commission of Indians and other federal Indian agencies in two popular states, Arizona and New Mexico, Indians have been virtually shut out of those agencies.

As that report explains, one of the reasons is that Indians have not been able to compete successfully for civil service examinations which don’t measure their true ability.

We are very worried this same thing would happen to the BIA if preference were taken from Indians and if the accepted service were taken from Indians and that clearly would defeat the congressional intent of allowing Indian self determination in their own affairs.

Harris D. Sherman :

So in sum, we believe that if the lower court had carefully considered the legislative background of the 1972 Act which it did not and if the lower Court had applied basic rules of statutory construction relating to special and general statutes which it did not, Indian preference would have been allowed to stand and we believe that the decision of the lower court should be reversed.

I have nothing further unless the Court has some questions.

William O. Douglas:

Thank you.

Mr. Franchini.

Gene E. Franchini:

Mr. Justice Douglas and may it please the Court your Honors.

There are still basically two issues presented before this Court here today Your Honors.

The first one being whether or not the 1972 Equal Employment Opportunity Act repealed the 1934 Indian Preference Acts by implication or whether that tacitly did so.

The second question I think that is presented to the Court is whether or not the Indian preference acts passed some 40 years ago, I am talking specifically about the 1934 Act Your Honors, is violative of the Fifth Amendment of the Constitution of the United States of America.

Now, with regard to the statement of the case presented to you here this afternoon, Your Honors by appellant, I would like to bring out a couple of factors with regard to BIA that the Court may or may not be aware of.

First of all, the Bureau of Indian Affairs, Your Honors, has a dual function and that dual functions are these.

Number one, it acts as a trustee for certain properties for the Indian nations and secondly it provides services to Indians through other federal and state agencies.

Now, when I say provide services, I am talking about such things as school construction, maintenance of schools, some teachers, providing power or water for irrigation or for lights.

There are some health services that are put through HEW —

Byron R. White:

[Voice Overlap] those preferences are all limited to Indians, aren’t they??

Gene E. Franchini:

They are limited to Indians, yes, Your Honor, but they are services rendered to Indians.

Byron R. White:

But to nobody else?

Gene E. Franchini:

Not to nobody else through the Bureau of Indian Affairs.

Byron R. White:

And would you suggest there’s also a constitutional question about those services?

Gene E. Franchini:

No, Your Honor Justice White.

I am not here to argue that point with regard to services under [Voice Overlap].

Byron R. White:

But you are here to argue that the constitutionality of a preference in employment for Indians —

Gene E. Franchini:

Yes, Your Honor.

Byron R. White:

A preference in the sense that they will hire only Indians for certain jobs?

Gene E. Franchini:

That’s correct, Your Honor.

And that they will promote only Indians.

Byron R. White:

You would not think of any constitutional question about furnishing schools only to Indians or the furnishing water or a lot of other services only to Indians?

Gene E. Franchini:

No, Your Honor I don’t and for this reason, Justice White, I think that it’s clear and it has been clear that Congress’ power with regard to Indians is almost plenary.

They have treated the Indians as a subjugated people for very many, many years and that their powers over the Indian nations have been plenary in this regard.

What we are dealing with in this particular case are government employees who are Indian members of the BIA as opposed to government employees in the BIA who are non-Indians and this Court and the Congress and the President can give as many rights as they want to, to these Indians, to these people.

There is no question about that. What makes this illegal, what makes this particular Act illegal that we are talking about and making it unconstitutional is that they are taking away from other government employees who are non-Indians to give the Indians the rights.

Gene E. Franchini:

They are taking the rights from the non-Indian employees of the BIA to give the rights to the Indian employees of the BIA.

Byron R. White:

Anything wrong then, if there is a vacancy in the BIA then there are two applicants, one an Indian and one a non-Indian, to give the job to the Indian?

Gene E. Franchini:

Everything else being equal if he is qualified.

We have a question of qualification here whether or not the Indian member as opposed to the non-Indian member.

Byron R. White:

Well, I will just ask you again.

You would not see anything wrong of giving — with giving the preference to the Indian in every case?

Gene E. Franchini:

Not so long as, Your Honor, the Indian is qualified and can pass the civil service examinations.

Byron R. White:

Well, no.

So you do see something wrong?

Gene E. Franchini:

Oh, yes I do.

Yes, Your Honor, in that regard.

[Voice Overlap] Yes, Justice White?

Byron R. White:

What rights has the non-employee got that’s being taken away from him by giving preference to the Indians?

Gene E. Franchini:

The right that the non-Indian employee has in the BIA is his right to his job.

If he is doing a good job —

Byron R. White:

Well I know but we are talking about, we are talking about vacancies.

About non-employees who are applying for employment, what rights have they got to object to a preference given to an Indian?

Gene E. Franchini:

If they are applying for the job and they are qualified for the job and there are no qualified Indians available for the job, they have a right to get the job.

Byron R. White:

Do you say they have the right under the Civil Service Law?

Gene E. Franchini:

Certainly and they have a right to their promotions when those become available which have not been applied as far as the way this Act is presently being applied Your Honor.

Thurgood Marshall:

What do you do with veteran’s preference?

Gene E. Franchini:

Your Honor I am not here to argue the matter of veteran’s preferences and I am really not as familiar with veteran’s preferences with regard to these kinds of Acts.

Thurgood Marshall:

Haven’t you heard that — haven’t you heard that they exist?

Gene E. Franchini:

Oh, I realize that they exists your Honor.

I realize that they exist.

The point that I am trying —

Thurgood Marshall:

[Voice Overlap] equally qualified people and the veteran automatically gets the preference.

Gene E. Franchini:

The thing that makes this matter unconstitutional, Justice Marshall, is not so much giving a qualified Indian job over a qualified non-Indian, but when they are both already employees of a Federal agency —

Thurgood Marshall:

I am talking about those that are applying for the job?

Gene E. Franchini:

We are talking here in this case Your Honor not for people that are applying for the job but promotions within the agency itself.

Gene E. Franchini:

Not initial hiring, we are talking about promotions, Justice Marshall.

Thurgood Marshall:

I know that.

But I thought you were talking originally about –my brother White asked you about somebody applying for a job.

That’s what I am aware of.

Gene E. Franchini:

If the qualifications are equal Your Honor.

From a practical standpoint, without a federal statute, probably, the Indian would have preference over the non-Indian in the BIA.

Thurgood Marshall:

You don’t believe that the BIA could say as a matter of policy there is no civil service required?

Gene E. Franchini:

No, Your Honor.

We think that that’s unconstitutional as well.

It’s part of the same Section of the Act that we’re talking about here.

Thurgood Marshall:

Well, we got — in the BIA we got a $100,000.00 and these are small figures because I cannot understand big ones [Laughter] for water and health facilities and $100,000.00 dollars for employment.

So far, the Government is concerned, they’re just two $100,000.00.

You say they expend that $100,000.00 to the exclusion of everybody but Indian.

One for the water —

Gene E. Franchini:

No, Your Honor.

I am saying that the Indian — the non-Indian employees in the BIA who are employees right now —

Thurgood Marshall:

But the BIA says we are going to put a $100,000.00 into a water purification plant on the Jacob’s reservation.

Gene E. Franchini:

Yes, Your Honor.

Thurgood Marshall:

And none of that water can anybody else than the Indian touch and that’s solely for Indians, that’s okay?

Gene E. Franchini:

Yes, Your Honor.

Thurgood Marshall:

And if the BIA said we are pouring a hundred thousand dollars for employment of Indians only, that is wrong?

Gene E. Franchini:

Yes, Your Honor.

Thurgood Marshall:

Why?

It is still a hundred thousand dollars.

Gene E. Franchini:

The appellees in this case are all [Voice Overlap].

Thurgood Marshall:

[Voice Overlap] about a hundred thousand dollars is all we are talking about the whole case is?

Gene E. Franchini:

What we are talking about here though, Your Honor, in deference to — in deference to what your first problem was is that in this case all of the appellees in this case are non-Indian employees of the BIA right now and they have been denied promotions in their jobs.

They have been denied advancement in their jobs even though they are qualified —

Thurgood Marshall:

And they knew it when they took the job?

Gene E. Franchini:

No your Honor.

Gene E. Franchini:

They did not know that when they took the job.

That is the reasons that we’re before the Court today.

What makes this unconstitutional, Justice Marshall, is what I am saying is they can have all of the rights that they want, all of the privileges that they want.

Thurgood Marshall:

When was this preference act passed?

Gene E. Franchini:

1934 Your Honor.

Thurgood Marshall:

Well, aren’t so many of these employees hired since 1934?

Gene E. Franchini:

Oh, yes, Your Honor.

Potter Stewart:

This promotion is a new policy, isn’t it?

Gene E. Franchini:

Yes, Your Honor.

It has been —

Potter Stewart:

It was always thought applicable to —

Gene E. Franchini:

Just the initial hiring.

Potter Stewart:

Initial hiring but the —

Gene E. Franchini:

Not as to promotion.

This is a brand new thing that has come up, Justice Marshall and Justice —

Potter Stewart:

And because the statute seems to be so confined, does it not?

Gene E. Franchini:

That’s true.

Potter Stewart:

I take it we do not have here any question about present employees being displaced at all.

It is just the question of promotion?

Gene E. Franchini:

I don’t know whether we have had any displaced employees.

I doubt it, Justice Blackmun.

What I was talking about are qualified non-Indian employees not being promoted and not being advanced within the BIA although they are qualified to be advanced.

William H. Rehnquist:

Mr. Franchini, did I understand you to say it would be unconstitutional for the Government not to apply the civil service rules to the Bureau of Indian Affairs?

Gene E. Franchini:

We are saying that the entire Indian Preference Statute that was passed in 1934 is no longer necessary in 1974 and that it is in fact unconstitutional, Justice Rehnquist.

Yes, that is what we are saying.

William H. Rehnquist:

Well, but certainly one argument I assume you make is that it’s close enough to a distinction based on race or color, so as to come under the Fourteenth Amendment.

But supposing there were no Indian Preference Statute, but the Bureau of Indian Affairs was simply exempt it from the civil service requirements that you take a competitive examination to get in although most other government departments require that certain examination.

There would be nothing wrong with that, would it?

Gene E. Franchini:

No, but that is not the case that we have before the bar, Justice Rehnquist.

That’s really, the problem has faced — facing this Court here today.

Gene E. Franchini:

Now, we are saying in the first instance Your Honors —

Harry A. Blackmun:

Mr. Franchini.

Gene E. Franchini:

Yes, Justice Blackmun?

Harry A. Blackmun:

What about the change and added to within the part of the Bureau in 1972 as to promotions and things, what was it that triggered that?

Gene E. Franchini:

I do not know exactly what triggered it Your Honor.

In 1972 or shortly thereafter, it became a policy of the Department of the Interior and in the Bureau of Indian Affairs to advance the Indian employees of the BIA over the non-Indian employees of the BIA and they were, as we maintain here today, subsequently discriminated against because of that reason.

And this is one of the reasons why this case has come before this Court so that this Court can determine whether or not the actions taken by BIA at that time are in fact constitutional or unconstitutional.

With regard to the argument about the 1972 Act repealing by implication the 1934 Indian Preference Statute Your Honors, I would like to point out this.

That at no time, at no time, Your Honors, during the course of the briefs or during the course of the argument that we have heard from the appellants, do the appellants at all deny that the Indian employees of BIA are government employees and subject to the rules and regulations laid down in the statutes that we are talking about here today.

There has been no objection and no exception either in the Court below or before this Court that they are government employees.

Now, the 1964 Equal Employment Opportunity Act, which apply to private employers, contained an exception for Indians living on or near a reservation, and I pointed that out that this exception was made for those businesses or enterprises operating on or near a reservation with a publicly announced policy, Your Honors, of aiding and assisting Indians.

Eight years later, in 1972, when they took the 1964 Act and applied it to federal employees, there is no exception in the Act with regard to BIA or BIA employees, none, Your Honors, it is absolutely absent.

In the briefs, I have pointed out that as a matter of congressional record, both Senator Bird of West Virginia and also Senator Humphrey of the State of Minnesota, have made extensive remarks during the course of the passage of the 1972 Act applying to all federal employees.

And I think that Senator Bird’s remarks are probably even more apropos here than in any other time.

He said, “I do not favor special treatment or special consideration or favored employment of any individual on the basis of that person’s being black or white or male or female.”

Not withstanding what I have just said, the fact remains that discrimination in employment on the basis of race does exist and discrimination against sex does persist.

Wherever there is such a discrimination in employment, it is violative of the Constitution of the United States.

In other words, he should rise or fall on the basis of merit, not on the basis of his race or religion or sex.

Every qualified individual, whether he be black, white or else, should be given an equal chance and not preferential treatment in an employment.

We would also like to point out to the Court that Section 105 of Title V of the United States Code specifically lists therein, Your Honors, Executive Department.

Now, Executive Department includes the Department of the Interior and is referred to and included in Section 717 of the 1972 Act.

Now if Congress had not intended to refuse to make an exception based upon race in government employment, why would they include it in the definition.

In other words, Congress did not intend to exclude namely Indian preference that which they specifically included in the Act.

When the appellants argue, Your Honors, that the 1972 Act is a general statute and the Indian Preference Statutes are specific legislation and that therefore, the latter should be upheld in resolving conflicts, I think we are talking about semantics.

They both cover the same principle that we are talking about here, Your Honors.

They both cover government employment.

They are of equal import.

They should be read together and if the conflict cannot be resolved between the two, then the most recent civil rights legislation giving us freedom from discrimination based upon sex, race, creed or color is the one that should be upheld and not vice versa, an Indian Preference Act passed 40 years ago, when the situation today is much different.

William H. Rehnquist:

How about the Indian Education Act that was passed in 1972?

Gene E. Franchini:

Again, Your Honor, this is an Act of Congress giving the opportunity to Indian young men and women to become educated so that they can go back to the Indian schools and teach the Indian-Americans what life is like outside of that reservation; that non-Indian world and that is perfectly alright.

Gene E. Franchini:

We are not talking about that kind of an action being unconstitutional, but I fail to see its applicability with regard to our first argument, the 1972 Act in fact impliedly repealed the Act of 1934.

This is another action by the Congress of the United States to give to the Indian-American another way out of this prison that he has been put in by virtue of this Indian Preference.

What we are saying to these people are, “You are American citizens.

You are citizens of the United States of America.

However, there is something different about you so we have to take special preferential care of you” and I think that is what we wanted to do.

Thurgood Marshall:

Mr. Franchini, you said there is a great difference between when the Preference Act was passed and the present time.

Is there any of these records backing up on that?

Gene E. Franchini:

Yes, Your Honor.

I think there is considerable information in the record with regard to that.

First of all, I would like to point to the record at page 41 with regard to the employment in the BIA.

The Court would turn to page 41, Justice Marshall.

That BIA data, at the top of that page, indicates who are the majority and who are the minority employees of the BIA.

At the present time, within the BIA, there are 8,347 Indian employees and 7,176 non-Indian employees or a total of 15,523 human beings working within that area.

Thurgood Marshall:

And what was the percentage when it was passed?

Gene E. Franchini:

The percentage was much lower as was counted by — as was stipulated by a counsel in his opening remarks in 1930 and between 1930 and 1934 there were very few Indian employees in what was then called the Indian service.

But the Indian service in those days really did have something to say about the life and politics of Indian [Voice Overlap].

Thurgood Marshall:

You go ahead, but I am not interested in that.

You say it is such a — the Indians are somewhat better off now.

I thought that’s what you are talking about.

Gene E. Franchini:

Yes, Your Honor.

They are better off than they were in 1934; much better off.

Thurgood Marshall:

Oh, sure!

So are you!

Gene E. Franchini:

[Laughter] I think so.

Thurgood Marshall:

I hope.

Gene E. Franchini:

Justice Marshall, recently in the Bureau of Vital Statistics of the United States, where in the 1940s, I think the average age of the Indian-American who died was 40.

It is now something like 68.

Thurgood Marshall:

Is any movement to repeal the Preference Act or you want us to repeal it?

Gene E. Franchini:

No, Your Honor.

I think that the Congress of the United States has [Laughter Attempt] repealed it by implication.

Thurgood Marshall:

I thought you said you wanted us to rule it unconstitutional?

Gene E. Franchini:

That is the second argument, Your Honor and I am going to get to that very shortly.

I think that it was repealed by the 1972 Equal Employment Opportunity Act and even it was not, it is still an unconstitutional —

Thurgood Marshall:

You came by one word in that Act that suggests it,right?

Gene E. Franchini:

Pardon Your Honor?

Thurgood Marshall:

There’s not one word in the Act that suggests the repealing.

Gene E. Franchini:

No, Your Honor.

Thurgood Marshall:

The only word you have is the word of Senator Bird where he said, “all others” and you say that includes Indians.

Gene E. Franchini:

Yes, Your Honor.

Thurgood Marshall:

You don’t repeal Acts that way.

You do not throw them all and say (Inaudible) repeal the whole and mess them at the same time.

You are really serious that this repealed it?

Gene E. Franchini:

Yes, Your Honor, I am really serious that I think that it repealed it.

Potter Stewart:

I suppose the court below was very serious when they held it was repealed and now [Voice Overlap].

Gene E. Franchini:

[Laughter] That’s true, Your Honor.

They were very, very specific on the point.

As part of the jurisdictional statements, this Honorable Court has the entire opinion of the Court below.

They were convinced that it was repealed.

(Inaudible)

Gene E. Franchini:

No, Your Honor, you can’t.

(Inaudible)

Gene E. Franchini:

That’s correct, Your Honor.

And the BIA today is in a state of upheaval.

(Inaudible)

Gene E. Franchini:

If there was a conflict and they have to be read in pari materia to one another and that the 1972 Act being the more recent, civil rights legislation repealed the 1934 Act.

That’s exactly the point, Your Honor.

Harry A. Blackmun:

And you were able to convince three New Mexico Federal Judges to that affect?

Gene E. Franchini:

Yes, Your Honor; Justice Seth, who is the Chief Justice of the Tenth Circuit and two district judges from Albuquerque.

(Inaudible)

Gene E. Franchini:

Yes, that’s correct, Justice White [Laughter].

Gene E. Franchini:

Justice Seth —

Thurgood Marshall:

I can read the opinion and I can disagree with it, can I?

Gene E. Franchini:

Yes, Your Honor, you sure can.

You surely can sir.

Thurgood Marshall:

It depends on what they said in their opinion and they just said automatically it was repealed which is just what you said.

Gene E. Franchini:

I think they went a little bit further than that Your Honor.

But this is a question of an interpretation of what the lower court held and certainly, Justice Marshall, you have the right to read it in that fashion.

With regard to the unconstitutional aspect of the 1934 Indian Preference Acts, Your Honor, the appellees here are a woman, a Jewish man, a Mexican-American and a black American, all non-Indian employees of the Bureau of Indian Affairs.

None of them are employed, Your Honors, on or near a reservation, none of them.

They all perform technical administerial task and no claim has ever been made that they make any decisions at all involving Indian matters or participation in Government.

For that matter, Your Honor, our point in the brief is, is that the BIA today does not make decisions for the Indian tribes.

Those decisions that govern their everyday lives are not made by the Bureau of Indian Affairs.

They are made in a Tribal Councils on the reservations.

And we are contending that the Indian Preference Acts of 1934 discriminate against them on racial basis in promotion to positions that are likewise not on or near a reservation, but as a matter of practical fact, in the Indian Polytechnical School in Albuquerque, New Mexico which is not on the reservation.

William H. Rehnquist:

The Secretary of the Interior though does have an extraordinary amount of authority as I recall, over the lives of individual and that he can approve wills, he can approve payments of Tribal Attorney’s fees and surely, in those matters, he is advised by the Bureau of Indian Affairs, isn’t he?

Gene E. Franchini:

I don’t know Your Honor.

I don’t know whether the Secretary of the Interiors ever advised by the Bureau of Indian Affairs.

There are some things in this brief, Justice Rehnquist, that indicate that perhaps that may not be the case.

I think that the Secretary of the Interior, Mr. Rogers C.B. Morton, realizes also that with this Preference Act that we have now applied, that the non-Indian employees of the BIA are in fact second class citizens.

And they are not being provided with their constitutional rights in having their jobs, not having the ability to be advanced in their jobs and promoted in their jobs, then of course —

Thurgood Marshall:

Well, is Mr. Morton, is he the one that is petitioner in this case?

Gene E. Franchini:

Mr. Morton, Roger C.B. Morton, the Secretary of the Interior is one of the appellants your Honor.

Amerind Inc. is the — an Indian organization for the [Voice Overlap].

Thurgood Marshall:

But he is one of the appellants?

Gene E. Franchini:

He is the — one of the appellants.

Thurgood Marshall:

And as I understood you just say he agreed with you.

Gene E. Franchini:

I think he does your Honor.

Thurgood Marshall:

Well, how can he be an appellant and be all your side too?

Gene E. Franchini:

[Laughter] I believe, your Honor, that —

Thurgood Marshall:

Well now, wait a minute.

Thurgood Marshall:

Now, a minute ago I think the other side admitted that for once, the United States government was in agreement on the case and now you say they are not even in agreement on this one.

Gene E. Franchini:

I do not think they are in agreement on this one neither Your Honor.

Thurgood Marshall:

They are in agreement with you?

Gene E. Franchini:

I hope so.

I think that is the way I read it Your Honor.

Potter Stewart:

In what issue?

Gene E. Franchini:

On the issue of as to whether or not with the existence of the Indian Preference, Justice Stewart, the non-Indian employees that I represent are in fact second class citizens in this country.

Because of the — their inability to be promoted, their inability to be advanced —

Potter Stewart:

Well I — they agree that Indians are given preference in promotion?

Gene E. Franchini:

Yes, Your Honor.

Potter Stewart:

That’s what you mean?

Gene E. Franchini:

And they do not disagree that they are every bit, the Indian employees are every bit as much governmental employees as mine on Indian clients.

Potter Stewart:

Right.

William H. Rehnquist:

Mr. Franchini, I do not know if the United States still has mandate authority over American Samoa or not, but it did it one time. Would you think it unconstitutional for the secretary of the Interior in governing that island to give a preference in local employment, preference in promotion to Samoans?

Gene E. Franchini:

I think so Your Honor.

You see, we are talking about two different things here with Indian preference, Your Honor.

Judge Rehnquist, if I could just take a moment I will try to explain.

An Indian is defined in these series of Acts.

Section 479 of 25 U.S.C. defines Indians for the purpose of this Indian preference as follows.

An Indian as used in these Sections including Indian preference shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal Jurisdiction.

And all persons who are descendant of such members who were on June 1, 1934 residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.

When we are talking about whether or not an Indian person is a member of a tribe, some tribes require a blood quantum, some do not.

But as far as the Preference Acts that we are talking about here, Your Honor, are concerned, they have to have — they are supposed to have one-half or more Indian blood, but there is no objection and there is no argument on the part of the appellants that they are in fact applying a one-quarter Indian blood test to exercise these preferences.

And I don’t believe that there has ever been argument by the Bureau of Indian Affairs or the Secretary that they are not applying that basis.

Now, when they passed this Act, and this is I think very, very interesting.

When Congress passed this Act in 1934 giving Indians preference, they said in Section 478 of Title 25 U.S.C., Sections 461, 462, 463, 464, 465, 466 through 470 and 471 through 473, and that includes the Indian preference because 472 is the Indian preference, of this Title shall not apply to any reservation wherein the majority of the adult Indians voting at a special election duly called by the Secretary of the Interior shall vote against its application.

It shall be the duty of Secretary of the Interior within one year after June 18, 1934 to call such an election which, election shall be held by secret ballot upon thirty days notice.

That election was held Your Honors and I think that it was clearly Congress’ intent that Section 472, which were the Indian Preference Acts, should not apply to any reservation where the male members of the tribe voted against its application.

As a matter of practical fact, the largest [Attempt to Laughter] Indian reservation in the United States today, namely the Navajo Reservation that come from where I come from, New Mexico and Arizona, voted against it.

And the tribal operations records within the Bureau of Indian Affairs will show that many other reservations also rejected, Chapter 576 in total.

Gene E. Franchini:

The Fifth Amendment of the Constitution of the United States, Your Honor, provides in part that citizens of the United States shall not be deprived life, liberty, and property without due process of law.

Byron R. White:

What is your point about the vote, therefore this preference should not be — should not obtain with respect to employment on the Navajo Reservation for example?

Gene E. Franchini:

Yes, Your Honor.

Byron R. White:

Well, what about —

Gene E. Franchini:

That seems to me to have been the intent of the law.

Now, I must point out to you though, Justice White, that in the lower court, they took a different view of that.

Byron R. White:

What if the preference is granted that in office of the Bureau of Indian Affairs in Albuquerque or in San Jose, not on the reservation.

Let’s assume that is true.

The exclusion would not apply, would it?

I mean the preference would apply.

Gene E. Franchini:

The preference would apply.

Byron R. White:

And the vote on the reservation would be irrelevant.

Well, where are these preferences?

Where are these preferences at issue in this case?

Where were they granted?

Gene E. Franchini:

These preferences were granted or the appellees in the case were not promoted off the reservation in Albuquerque at an Indian school, a Polytechnical School in Albuquerque, New Mexico.

Byron R. White:

Well then, the vote against it on the reservation is irrelevant?

Gene E. Franchini:

Probably, Your Honor.

Justice White, I wanted to point out that the Section is — that the Section was in there as part of the Indian Preference Act to see whether or not the reservations and the Indians, all Indians of one-half blood really wanted this to be a preference.

Byron R. White:

(Inaudible)

Gene E. Franchini:

That’s true, Your Honor.

In this particular case, this failure to promote an advance qualified personnel happened off the reservation, in the city, in a BIA run school for Indian children.

Alright.

Gene E. Franchini:

The case of the Board of County Commissioners versus Seber which has been quoted by counsel for the appellants, appellees do not feel, decide the issue or the issues in this case.

That case decided an issue of whether or not the Tax Exemption Statutes were violative of the Due Process Clause of the Fifth Amendment.

And it had to with whether or not the rights of individual Indians and the United States as a Trustee of property had anything to do with the taxation part of the matter.

It did not involve the dispute between property rights of Indians and non-Indians.

It had to do with something entirely different than that.

The other case that is cited by the appellants in their briefs and during their argument I think Your Honors, none go to the point in issues here.

There are the points in issue here.

Gene E. Franchini:

It is a proposition and a stand from the proposition that the Indians have a different and probably a very unique position with regard to other people in the United States of America, but it does not decide whether or not you can deprive a government employee in the BIA advancement in his position when he is qualified because of an Indian Preference Act.

We believe that that is contrary to the Fifth Amendment of the Constitution of the United States and it is a distinction based upon race.

We are talking about one quarter Indian blood.

When we start talking about blood, we are talking about race here, Your Honors and I think that that is clearly the issue here.

That this is strictly a racial preference and this is strictly a preference based upon race and nothing more or less than that.

Finally, Your Honors, I would like call the Court’s attention to the case of Griggs versus Duke Power Company in 401 U.S. 424.

At page 400 of that opinion, the Chief Justice who, unfortunately is not with us here today, wrote an opinion and part of that opinion I think is very, very pertinent here.

It says that Congress did not intend by Title VII however, to guarantee a job to every person regardless of qualifications.

In short, the Act does command that any person be hired simply because he was formerly the subject of discrimination or because he is a member a minority group.

Discriminatory preference for any group, minority or majority, is precisely and only what Congress has prescribed.

What is required by Congress is the removal of artificial, arbitrary and unnecessary barriers to employment when the barriers operate insidiously to discriminate on the basis of racial or other impermissible classification and that is precisely I think, Your Honors what has happened here.

If there are no further questions from this Court, we confidently submit our case to you for your consideration, Mr. Justice Douglas.

William O. Douglas:

The case is submitted.

Do you have some more to say?

Harry R. Sachse:

I may have about 30 seconds.

I obviously cannot answer all of these things.

I ask the Court not to get into the question of the scope of the preference too much.

That is in litigation elsewhere.

It was not —

(Inaudible)